Michigan Journal of Gender and Law
Volume 15 | Issue 1
2008
The Lactating Angel or Activist? Public
Breatsfeeding as Symbolic Speech
Elizabeth Hildebrand Matherne
Law Offices of Robert Wesley, Public Defender, Ninth Judicial Circuit of Florida
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Recommended Citation
Elizabeth H. Matherne, The Lactating Angel or Activist? Public Breatsfeeding as Symbolic Speech, 15 Mich. J. Gender & L. 121 (2008).
Available at: http://repository.law.umich.edu/mjgl/vol15/iss1/3
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THE LACTATING ANGEL OR ACTIVIST?
PUBLIC BREASTFEEDING AS SYMBOLIC SPEECHt
Elizabeth Bildebrand c.atherne*
INTRODUCTION-
121
1.
CULTURAL CONTEXT-THE BENEFITS OF BREASTFEEDING
II.
A. BreastfeedingBenefits the Infant • 124
B. BreastfeedingBenefits the Mother • 125
C. BreastfeedingBenefits Society . 126
CULTURAL CONTEXT-SOCIAL STIGMA • 127
III.
SOCIETY'S MESSAGE-WOMEN BELONG IN THE HOME
IV. No VIABLE LEGAL RECOURSE • 131
V. HISTORY OF FIRST AMENDMENT AND
SYMBOLIC SPEECH UNDER THE SPENCE TEST •
VII.
BREASTFEEDING IS SYMBOLIC SPEECH •
.
123
128
SYMBOLIC SPEECH •
VI.
CONCLUSION
.
•
134
136
139
142
INTRODUCTION
"[T]he history of women's visibility is predominately the history of
women's objectificationand oppression."'
t
1.
The term "lactating angel" borrowed with the author's permission from the article of St.
Thomas University School of Law Professor, Amy D. Ronner, Women Who Dance on
the Professional Track: Custody and the Red Shoes, 23 HAstv. WOMEN'S L.J. 173, 184
(2000) (discussing the Florida case Young v. Hector, 740 So. 2d 1153 (Fla. Dist. Ct.
App. 1988) rev'den banc, 763 So. 2d 1046 (Fla. 2000), in which the panel decision and
en banc dissent would have awarded custody to the father because the mother was a
partner in a law firm).
Elizabeth Hildebrand Matherne-Assistant Public Defender, Law Offices of Robert
Wesley, Public Defender, Ninth Judicial Circuit of Florida. J.D., 2007 St. Thomas
University School of Law; B.S. International Trade, 2001, Georgia Southern University. I dedicate this Article to my two incredible children, Maitland and Madeline. I
am forever grateful to them for being the catalyst in finding my Courage. I express
my deepest gratitude to my husband, Joe, who I love so dearly and who is truly my
partner in life. I would like to thank my mother, Alice Hildebrand, and my aunt,
Susan Anderson for their love and support and for passing along the tradition and
importance of breastfeeding. I would also like to thank my friend and mentor Professor Amy Ronner, as well as, my friend Melissa O'Connor for their invaluable insight
and friendship. Finally, I would like to thank Professor John Kang; without his First
Amendment Seminar, advice, and encouragement this Article would not exist.
Darcy G. Grisby, Dilemmas of Visibility: Contemporary Women Artists' Representations
of Female Bodies, in THE FEMALE BODY: FIGURES, STYLES, SPECULATIONS 83, 99-100
(Laurence Goldstein ed., 1991).
MICHIGAN JOURNAL OF GENDER & LAW
[15:121
'Resistance can take the form of momentous acts of organized,
planned anddisciplinedprotests, or it may consist of small, everyday actions of seeming insignificance....2
"Breastfeeding is perceived by many as dirty, sexual, embarrassing,
and generally, something that should be kept behind closed doors." 3 The
women who bravely breastfeed in public reject these notions and prioritize their children's health above patriarchal societal mores. I propose
that a cultural climate that elevates modesty over health by relegating
breastfeeding to behind closed doors is an extension of a patriarchal desire to subjugate women by confining them the home.
Negative attitudes against public breastfeeding persist in spite of the
fact that the majority of current research shows clear evidence that
breastfeeding is exceedingly beneficial to mothers, infants, and society.
The social stigma against breastfeeding in public prevents many women
from even attempting to breastfeed their children.4 Although "most
states have instituted some type of legislation to exempt breastfeeding
mothers from criminal liability,"5 most "[b]reastfeeding women wonder
whether they will be harassed, evicted, or even arrested for feeding their
babies in public ' 6 under indecent exposure statutes. While recent state
statutes attempt to shield women from harassment, they do not provide
any redress or penalties for harassment faced by these women.
The only way to combat this stigma against public breastfeeding is
through the act of breastfeeding in public. I propose that breastfeeding
is a powerful act of symbolic speech vital for discarding one of the lingering shackles of women's inequality that triggers first amendment
protection. Breastfeeding in public addresses this stigma by treating two
ills at once: 1) greater public exposure to the practice decreases the severity of society's reactions, and 2) the less stares and confrontation that
publicly nursing mothers receive, the more likely they will be to breastfeed, whenever or wherever their baby is hungry. This will have an
impact not only on the number of mothers that even attempt to breast-
2.
Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender,
3.
Danielle M. Shelton, When Private Goes Public: Legal Protection for Women Who
Breastfeedin Public and at Work, 14 LAw & INEQ. 179, 179 (1995).
See, e.g., Breast-FeedingControversy: The Fight to Nourish in Public, Is it Inappropriate
1991 DuKE L. J. 365, 396 (1991).
4.
to Breast-Feed in Public?, ABC News, Good Morning America (July 18, 2006)
http://www.abcnews.go.com/ print?id=220629 1) (last visited Dec. 13, 2007) (stating
"[a]lthough studies show that breast-feeding is healthy for both mother and child, 57
percent of the public are uncomfortable . .
5.
Id.
6.
Shelton, supra note 3, at 180.
2008]
THE LACTATING ANGEL OR ACTIVIST?
feed, but also, on the number of mothers that are able to make it to the
American Pediatrics Association's recommended 1 year.
In the First Section of this Article I will explore the current cultural
context surrounding public breastfeeding. I segment this discussion into
three separate parts: 1) the benefits of breastfeeding, 2) the social stigma
against public breastfeeding, and 3) how the combinations of parts 1
and 2 send a clear message to mothers and women in general that
women belong in the home. This is a message feminists have been fighting against for decades, and rightly so. I then explain how the situation
is worsened by a lack of viable legal recourse for public breastfeeding
discrimination.
In the Second Section, I explore the First Amendment and symbolic speech. Next, I explain how, at first glance, the Spence test sounds
simple, but in practice is very difficult to apply and does not accomplish
the intended goals of the First Amendment. In response, I highlight the
part of the Spence test that seems to be most dispositive to the United
States Supreme Court's determination that an act is expressive: the context. In conclusion, I explain why public breastfeeding is symbolic
speech and how the cultural context of the act elevates a seemingly
mundane and unexpressive act to the levels of protected symbolic
speech.
I.
CULTURAL CONTEXT-THE BENEFITS OF BREASTFEEDING
"Breastfeeding is universally endorsed by the world's health and scientific organizations as the best way of feeding infants."7 The United
States Breastfeeding Committee states "[y]ears of research have shed
light on the vast array of benefits not only for children but also for
mothers and society. 8 The benefits of breastfeeding are far more numerous than this Article can address. In general, breastfeeding provides
children with "optimal development and protects against acute and
chronic illness." 9 Breastfeeding is also beneficial to mothers because it
7.
(2002),
http://usbreastfeeding.org/Issue-Papers/Benefits.pdf [hereinafter U.S. BREASTFEEDING] (citing Workgroup on Breastfeeding, Am. Acad. of Pediatrics, Breastfeeding and
UNITED STATES BREASTFEEDING COMMITTEE, BENEFITS OF BREASTFEEDING
the Use of Human Milk, 100
PEDIATRICS
1035 (1997);
SUBCOMMITTEE ON NuTRI-
TION DURING LACTATION, INSTITUTE OF MEDICINE, NUTRITION DURING LACTATION
8.
9.
(1991); Note for the Press, World Health Organization, The Optimal Duration of
Exclusive Breastfeeding: Results of a WHO Systematic Review (April 2, 2001),
http://www.who.int/inf-pr-2001/en/note2001-07.html.
U.S. BREASTFEEDING, supra note 7, at 1.
Id.
MICHIGAN JOURNAL OF GENDER & LAW
[15:121
promotes a milder "recovery from pregnancy and child-birth" and "lifelong health advantages."' On a larger scale, "breastfeeding provides a
range of economic and environmental rewards" for society as a whole."
A. BreasifeedingBenefits the Infant
"Each year more and more scientific evidence is gathered to prove
what many people already intuitively know: that a mother's milk is the
best food for her baby."' 2 The advantages that breastmilk offers for children "cannot be duplicated by any other form of feeding." 3 Not only
does breastmilk contain "the right amount of nutrients, in the right
proportions" for optimal physical and mental development of a growing
baby until the age of 6 months, breast milk is a living biological fluid
that contains many unique components. 14 "For example, lactoferrin provides optimal absorption of iron and protects the gut from harmful
bacteria; liapses assist in the digestion of fats; and special growth factors
and hormones contribute to optimal growth and development."' 5 Amazingly, the composition of breastmilk6 changes "as the baby grows to meet
baby's changing nutritional needs.'
The benefits of breastfeeding extend beyond nutrition-" [h]uman
milk is baby's first immunization." 17 "It provides antibodies which protect baby from many common respiratory and intestinal diseases, and
also contains living immune cells."' 8 "Compared with formula-fed children, those who are breastfed are healthier and have fewer symptoms
and shorter illnesses when they do get sick.""' Artificially fed infants
"have higher rates of middle ear infections, pneumonia, and cases of...
stomach flu., 2 On the other hand, children who are breastfed have a
10. Id.
11. Id.
12. Wendy Correa, Eco-Mama: Why Breastfeeding is Best for Babies ... and the
Environment, 95 MOTHERING 67 (July/August 1999) available at http://
www.mothering.com/articles/new-baby/breastfeeding/ ecomama.html) [hereinafter
Eco-Mama].
13. U.S. BREASTFEEDING, supra note 7, at 1.
14. Alicia Dermer & Anne Montgomery, Breastfeeding: Good For Babies, Mothers and the
Planet, http://www.geocities.com/Heartland/ Plains/7503/GREATBF.HTML) (last
visited Feb. 13, 2008).
15. Id.
16. Id.
17. Id.
18. Id.
19. U.S.
BREASTFEEDING, supra note 7, at 1.
20. Dermer & Montgomery, supra note 14.
20081
THE LACTATING ANGEL OR ACTIVIST?
lower incidence of all of the above mentioned conditions, as well as a
lower incidence of sudden infant death syndrome (SIDS), a lower risk of
Crohn's disease, ulcerative colitis, Hodgkin's disease, childhood leukemia, juvenile diabetes, asthma, and obesity. 21 Additionally, "[b]reastfed
children score higher on cognitive and IQ tests at school age and also on
visual acuity [tests]. ' 22 Breastfeeding has even been shown to result in
fewer cavities and a decreased likelihood of [need for] braces. 23 As a result of the prevalence of studies showing the myriad benefits of
breastfeeing, "[i]n December 1997 the American Academy of Pediatrics
issued its most aggressive statement to date urging mothers to breastfeed
for at least a year and beyond, 'for as long as mutually desired'. 24
B. BreastfeedingBenefits the Mother
Furthermore, 'breastfeeding offers a range of benefits for mothers
"[H]ealthier babies are less stressful to care for, and the decreased
... .,,25
medical costs are a boon to the family., 26 Mothers "who have breastfed
are less likely to develop ovarian and pre-menopausal breast cancers,""
21.
U.S. BREASTFEEDING, supra note 7, at 1 (citing Nancy F. Butte, The Role of Breastfeeding in Obesity, 48 PEDIATRIC CLINICS OF N. AM. 189 (2001); Margaret K. Davis,
Review of the Evidence for an Association Between Infant Feedingand Childhood Cancer,
11 INT'L J. CANCER 29 (1998); Michael Gdalevich, Daniel Mimouni & Marc Mimouni, Breastfeeding and the Risk of Bronichial Asthma in Childhood A Systematic
Review with Meta-Analysis ofProspective Studies, 139 J. PEDIATRICS 261 (2001); Matthew W. Gillman, et.al., Risk of Overweight Among Adolsescents Who Were Breastfed as
Infants, 285 J. AM. MED. Ass'N 2461 (2001); M. Jane Heinig & Kathryn G. Dewey,
Health Effects of BreastfeedingforMothers:A CriticalReview, 9 NUTRITION RES. REV.
89 (1996)).
22. Id. (citing James W. Anderson, Bryan M. Johnstone & Daniel T. Remley, Breasrfeeding and Cognitive Development: A Meta-Analysis, 70 AM. J. CLINICAL NUTRITION 525
(1999); Denise L. Drane & Jeri A. Logemann, A CriticalEvaluation of the Evidence
on the Association Between Type of Infant Feeding and Cognitive Development, 14 PEDIATRIC & PERINATAL EPIDEMIOLOGY
349 (2000); Lykke Mortensen et al., The
Association Between Duration of Breastfeeding and Adult Intelligence, 287 J. AM. MED.
ASS'N 2365 (2002).) See also, id. (stating that "[c]ompared with premature infants
who receive human milk, those who receive formula have future IQs that are 8-15
points lower").
23. Id
24. Eco-Mama, supra note 12 (citing Pediatrics Group Urges a Year of Breastfeeding,
CHI. TRIB., December 3 1997, § 1, at 3.
25. U.S.
BREASTFEEDING,
supra note 7, at 2.
26. Dermer & Montgomery, supra note 14.
27. U.S. BREASTFEEDING, supra note 7, at 2 (citing M. Jane Heinig & Kathryn G.
Dewey, Health Effects of Breastfeedingfor Mothers: A Critical Review, 10 NUTRITION
RES. REV. 35 (1997); Miriam H. Labbok, Effects of Breasfeeding on The Mother, 48
PEDIATRICS CLINICS N. AM. 143(200 1)).
MICHIGAN JOURNAL OF GENDER
&
LAW
[15:121
and there is some evidence to suggest the incidence of coronary artery
disease may be reduced. 28 The longer "a woman has spent breastfeeding,
the greater the beneficial effect. ' 29 Additionally, "[b]reastfeeding reduces
osteoporosis."30 Breastfeeding has also been linked with a faster recovery
after childbirth and a higher likelihood that the mother will return to
her pre-pregnancy weight, compared with mothers who formula feed.'
Mothers who breastfeed "are reported to be more confident and less
anxious than bottle-feeding mothers,"32 perhaps because of the greater
"feelings of attachment between mother and ... child"33 that breastfeeding offers. These feelings alone are the spring board for a plethora of
benefits to children, mothers and even society.
C Breastfeeding Benefits Society
"Breastfeeding offers society not only improved health of children
and mothers but also economic and environmental benefits."3 4 There is
evidence, although not conclusive, that the increased hormonal production caused by breastfeeding may be linked to mother-child bonding. 5
Studies have shown a lower abandonment rate36 and have suggested a
"lower rate of child abuse in breastfeeding mothers in families that were
considered to be at risk. 7 "Breastfeeding reduces the need for costly
health services that must be paid for by insurers, government agencies,
or families."38 "[T]he number of sick days that families must use to care
for their sick children" is reduced." Feeding an infant with artificial
methods ($1,200 per year for powdered formula)is four times more expensive than that of breastfeeding (approximately $300 per year for
28. Dermer & Montgomery, supra note 14.
29. U.S. BREASTFEEDING, supra note 7, at 2.
30. Id.
31. Id. (citing Heinig & Dewey, supra note 27.)
32. Id.(citing RUTH A. LAWRENCE & ROBERT M. LAWRENCE, BREASTFEEDING: A GUIDE
FOR THE MEDICAL PROFESSION (5th ed. 1999)).
33. Id.
34. Id.
35. Dermer & Montgomery, supra note 14.
36. Id.; see also Natalya M. Lvoff et al., Effect of the Baby-Friendly Initiative on Infant
Abandonment in a Russian Hospital, 154 ARCHIVES PEDIATRICS ADOLESCENT MED.
474, 476 (2000), availableat http://archpedi.ama-assn.org/cgi/reprint/ 154/5/474.
37. Dermer & Montgomery, supra note 14. See alo Lane Strathearn, Breasifeeding and
Mother-Infant Separation:Independent Predictorsof ChildAbuse and Neglect, ABSTRACTS
PRESENTED AT THE NOVEMBER 2003 SECTION ON BREASTFEEDING EDUCATIONAL PRO-
GRAM, availableat http://www.aap.org/breastfeeding/2003NCEabstracts.pdf.
38. U.S. BREASTFEEDING, supra note 7, at 2.
39. Id.
2008]
THE LACTATING ANGEL OR ACTIVIST?
increased food for a lactating woman). ° "Breastfeeding requires no
packaging, and ... [the] production [of breastmilk] does not harm the
environment" while infant formula production requires electricity or
fuel.4
II. CULTURAL CONTEXT-SOCIAL STIGMA
As technology advances and more studies are done, it is becoming
less controverted that breast milk is superior to formula. As discussed
above, breastfeeding benefits not only mother and infant, but society as
a whole. Yet, there are countless newspaper reports of women being
shunned, harassed and even ejected from public places for nursing a
hungry baby. 4 According to an MSNBC report, Emily Gillette, 27, who
was breastfeeding her daughter on a an airplane as flight attendants and
pilots prepared to depart from Baltimore International Airport on Oct.
13, 2008, was actually removed from the flight. 3 Even though, as she
described, "she was seated by the window in the next-to-last row, her
husband was seated between her and the aisle and no part of her breast
was showing,"44 a Freedom Airlines flight attendant insisted she cover up
40. Id.
41. Id.
42. See, e.g., Amy Harmon, 'Lactivists' Taking Their Cause, And Their Babies to the Streets,
N.Y. TIMES, June 7, 2005, at B1, available at http://www.nytimes.com/2005/06/
07/nyregion/07nurse. html?ex=1184644800&en=055037dea8877ab2&ei=5070 (describing a nurse's response to Barbra Walters' negative remarks about public
breastfeeding as well as the stories of hundreds of women who were asked to stop
nursing in public spots, including the Children's Museum in Huntsville, Alabama, a
knitting store in the East Village, New York City, a Radisson Hotel lobby in Virginia, a public bus in Los Angeles, and a city commission meeting in Miami Beach);
Virginia L. Marchant, Are your breasts bound by law?, MOTHERING, Jan.-Feb. 2005,
available at http://findarticles.com/p/artices/mi-mO838/is_128/ai-n8692163/pg1
(depicting, among many other stories, the story of one mother who was harassed by a
store manager for nursing in a quite corner of an H&M clothing store in August of
2003); Isabelle Schallreuter Olson, Comment, Out ofthe Mouth ofBabes: No Mother's
Milk for U.S. Children, 19 HAMLINE L. Rsv. 269, 269 (1995) (highlighting a Dear
Abby column where a woman who was discreetly breastfeeding her baby in a beauty
parlor was asked to hurry up and finish because she was offending other customers
and also documenting the responses of other women to this column, saying they felt
that breasts "should not be flaunted in public" and that it was "gross"); Breast-Feeding
Controversy, supra note 4, at 1.(stating "Although studies show that breast-feeding is
healthy for both mother and child, 57 percent of the public are uncomfortable with
public breast-feeding, according to babytalk magazine.").
43. The Associated Press, Woman Kicked Off Plane for Breast-DeedingBaby, MSNBC,
Nov. 16, 2006, http://www.msnbc.msn.com/id/ 15720339/ [hereinafter MSNBC].
44. Id.
MICHIGAN JOURNAL OF GENDER C' LAW
[15:121
with a blanket.45 Mrs. Gillette declined, asserting that she "had a legal
right to breast-feed her baby., 4 6 Because Mrs. Gillette did not "want to
make a scene," she, her husband and child "complied" with the flight
attendant and security guards and exited the plane."
Emily Gillette's story is an example of what many mothers face
every day. Many of these women never report such harassment. Further,
and more tragic for the nation's children, countless women do not even
attempt to breastfeed their children because of the dreaded consequences (looks, stares, comments, confrontation, harassment, and
eviction) of nursing a baby in public. Yet, there are other women who,
regardless of the potential conflicts, march out into the sunlight and
reclaim their stake in parenting. These women are not only reaching
backwards to a lost time, prior to Christianity and the industrial revolution, where natural acts of motherhood were commonplace in the lives
of all mothers", but at the same time, forging forward to break down
barriers to women's mobility in the world. By breastfeeding in public
these women are challenging society's idea of a woman's body as purely
sexual and shameful.
III. SOCIETY'S
MESSAGE-WOMEN BELONG IN THE HOME
Any real and complete independence and equality that women
achieve must be accompanied by autonomy over their own bodies.49
Male power is perpetuated by regarding women as objects that
men act on and react to rather than as actors themselves.
When women are regarded as objects, a great deal of importance rests on their appearances because their entire worth is
derived from the reaction they can induce from men. In order
45. Id.
46. Id.
47. Id.
48. See Walter Brooks, UNMC, NHS Promote NationalBreastfeeding Week, UNIVERSITY
OF NEBRASKA MEDICAL CENTER (2002) http://appl.unmc.edu/Public Affairs/
TodaySite/sitefiles/printable.cfm?match=479 (citing BREASTFEEDING: BIOcULTuRAL
PERSPECTIVES (Katherine Dettwyler & Patricia Stuart-Macadam ed., 1995) (giving a
brief and capsulated version of the history of breastfeeding, including a description of
Greek, Roman and Egyptian societies).
49. Reena N. Glazer, Women's Body Image and the Law, 43 DuKE L. J. 113, 137 (1993).
2008]
THE LACTATING ANGEL OR ACTIVIST?
to maintain the patriarchal system, men must determine when
and where this arousal is allowed to take place. 0
Requiring women to cover their breasts with indecency statutes and
erotic dancing regulations have codified the "male myth of a woman's
breast" as sexual and erogenous into law." "Because women are [regarded as] the sexual objects and property of men, it follows that what
might arouse men can only be displayed when men want to be
aroused. 5 2 The result? Society has accepted that women must cover
their breasts in public. Requiring women to cover their breasts in public
has discouraged women from breastfeeding" and erected further barriers
to women's mobility in society."
This is a "vivid example of the inequities in the power structure [of
our society]. A male norm focuses the difference as resting with women.
Because men cannot breast-feed, it is not accepted as a form of appropriate public behavior. '"" As Ann Scales stated in her 1981 article,
historically,
[T]he subjection of women is based upon biological differences between the sexes which resulted in a basic division of
labor along domestic and non-domestic lines: men were out in
the world developing culture and a market, while women, due
to pregnancy, nursing and the maintenance of children, were
restricted in their function to ... tasks that could be accomplished in the home. 6
50.
Id. at 116 (citing Janet Rifkin, Towards a Theory of Law and Patriarchy,3 HARV.
L.J. 83, 90-91 (1980); Mary Whisner, Note, Gender-Specific Clothing
Regulation: A Study in Patriarchy,5 HARv. WOMEN'S L.J. 73, 77 (1982)).
WOMEN'S
51. Id.
52. Id.
53. Id. at 138 (citing Brief of Defendant-Appellant at 27, People v. Santorelli, 600
N.E.2d 232 (N.Y. 1992) (No. 115) (referencing testimony of psychologist Dr. Rita
Freedman)).
54. "[T]he pervasive historical underpinnings of the oppression of women must be recognized. It has been argued that the subjection of women is a basic form of
dominance in that women have been relegated to the home regardless of their racial
or socio-economic status." Ann C. Scales, Toward a FeministJurisprudence,56 IND.
L.J. 375, 424-25 (1981).
55. Glazer, supra note 49, at 139.
56. Scales, supra note 54, at 425. "This division of labor, originating in biological circumstance, became a necessity ... to sustain first, an agricultural, and later, an
industrial society." Id. Now that the social order is not as largely dependant on the
supply of workers and heirs "[i]t is no accident that the statutes and common law
doctrines which conceived women and children as private property are breaking
MICHIGAN JOURNAL OF GENDER & LAW
[15:121
"Legal sanctions and prohibitions have historically served to reinforce this social framework."57 Yet, as Scales pointed out, the "historical
subjection of women was premised on biological differences," while today the "elements of necessity that once prescribed the social order ...
no longer exist."' 8 The social stigmas and harassment women face regarding breastfeeding in public is an extension of these divisions. And,
just as forced maternity leaves, pregnancy discrimination, and sexual
harassment are no longer legally or socially accepted practices, it is time
that discrimination and harassment against public breastfeeding follows
suit.
Further, "[b]reastfeeding serves a vital purpose."'" It is well documented that breastmilk is the best nutrition for an infant.60 As discussed,
breastfeeding provides numerous benefits for both mother and child.61
Further, burdens on society are lessened when babies are breastfed. "The
connection between mother and infant is critical" and "male observers
are irrelevant to the process."" Negative reactions that breastfeeding
mothers encounter are the result of the proliferation and acceptance of
the male perspective of sexualizing female breasts. This particular male
perspective impedes complete female autonomy. As Corey Silberstein
Shdaimah so eloquently states, "[w]hen the message of the benefits of
breastfeeding intermingles with the lack of acceptance of breastfeeding
in public, this creates the anti-woman, anti-feminist message that a good
mother must breastfeed and a breastfeeding mother must stay at home,
down .
"Id. at 425 n. 288; See also, Dahleen Glanton, Moms Have the Right, But
Public Still Frowns: Despite Health Benefits and 34 States' Laws, Public Breast-feeding
Makes Some Queasy, CHI. TRIB., August, 7, 2006 (quoting Melissa Vance, La Leche
League attorney, as saying "[flifty years ago, most moms stayed home and [were] not
running kids back and forth to soccer games .... We are an increasingly mobile society today, and women are much more visible so it is more likely to see them breastfeeding in public. There are also more women in the workplace, so it's out there. It's
a generational thing .... ").
57. Scales, supra note 54, at 425.
58. Id.
59. Glazer, supra note 49, at 139.
60. See supra Part I; See e.g. Emmanuel Cheraskin, Breas feeding Versus Animal Milk,
NUTRITION HEALTH Rav., Spring 1995, at 8 (stating that breastfeeding "is the best
way of nourishing the infant").
61. See Olson, supra note 42, at 271-72 (noting that breast-fed infants are less likely to
suffer from diarrhea, ear infections, and various other childhood diseases including
some cancers, allergies, and respiratory infections); Id. at 271-273 nn. 19-38 (citing
numerous medical studies on the effects of breastfeeding, including a study which
found that breastfed children perform better on developmental and IQ tests); Id. at
274 nn. 43-45 (noting that women who breasrfeed their children reduce the risk of
developing both ovarian and breast cancer and also that "prolonged lactation helps a
woman lose weight after pregnancy").
62. Glazer, supra note 49, at 139.
2008]
THE LACTATING ANGEL OR ACTIVIST?
i.e., a good mother must stay home."" I believe the more opportunity
mothers have to be equal members of society, which is accomplished by
freedom of movement and having complete autonomy over their bodies
and, for that matter, their lives, the better mothers they will be. Further,
as the New York legislature stated when it declared breastfeeding a civil
right:
The promotion of family values and infant health demand
putting an end to the vicious cycle of embarrassment and ignorance that constricts women . . . and represents hostility to
mothers and babies in our culture based on archaic and outdated moral taboos. Any genuine promotion of family values
should encourage public acceptance of this most basic act of
nurture between mother and baby, and no mother should be
made to feel incriminated or socially ostracized for breastfeeding her baby6M
IV. No
VIABLE LEGAL RECOURSE
While many people are aware of the benefits of breastfeeding, they
are, at the same time, unaware of the legal issues surrounding breastfeeding. 65 However, most breastfeeding women are keenly aware of such
issues.66 The La Leche League is an international organization created in
1956 by seven women whose mission is "to help mothers worldwide to
breastfeed through mother-to-mother support, encouragement, information, and education, and to promote a better understanding of
breastfeeding as an important element in the healthy development of the
63. Corey Silberstein Shdaimah, Why Breasifeeding is (Also) a Legal Issue, 10 HASTINGS
WOMEN'S L.J. 409, 417(1999).
64. N.Y. Civ. Rights Law § 79-e (McKinney Supp. 2008) (legislative findings). The New
York legislature went on to find that "breast feeding a baby is an important and basic
act of nature which must be encouraged in the interests of maternal and child health
and family values." Id. In the 13 years since it was enacted, only one case has been
brought under this statute. (See Landor-St. Gelais v. Albany Int'l Corp., 763
N.Y.S.2d 369 (2003) (holding that the employer did not violate the statute by requiring the mother to use a separate facility to pump and store milk during her breaks
because the statute refers to public breastfeeding and not to pumping milk.)
65. See Shelton, supra note 3, at 180.
66. Id.
67. La Leche League, http://www.llli.org/about-us.html?m=1,0 (last visited March 3,
2008); La Leche League http://www.llli.org/ LLLIhistory.html?m=1,0,0 (last visited
March 3, 2008).
MICHIGAN JOURNAL OF GENDER &-LAW
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baby and mother."68 Melissa R. Vance, a La Leche League leader, and an
attorney in private practice, maintains a running summary for the La
Leche League website." According to Vance, there are two types of laws
in the area of public breastfeeding in the United States: "(1) those which
exclude breastfeeding from indecent exposure or other criminal laws;70
and (2) those which expressly state a mother may breastfeed in public.,
Further, according to her research, "[t]hirty-four states currently have
laws that fall into one of those categories. ' 71 Additionally,
"[a]pproximately 16 states exempt breastfeeding from various types of
criminal statutes, while several of these states also have separate statutes
addressing breastfeeding in public., 72 For example, "Virginia, only addresses breastfeeding on property that is owned, leased, or controlled by
that state,, 73 while North Carolina "exempts breastfeeding from the indecent exposure laws, and states that a woman has a right to breastfeed
in any public or private location in the same statute.,71
What went unnoticed to most was a small victory for breastfeeding
advocates when, "[i]n 1999, an amendment was added to a US postal
appropriations (spending) bill that included language that stated a
woman may breastfeed her child at any location in a federal building or
on federal property, if the woman and her child are otherwise authorized
to be present at the location., 75 While now in the minority, the District
of Columbia, Massachusetts, North Dakota and West Virginia do not
have any laws addressing breastfeeding.76
68. La Leche League, http://www.Illi.org/mission.html?m=1,0,2 (last visited March 3,
2008).
69. La Leche League, http://www.llli.org/llleaderweb/LV/LVJunJunO5p5l.htm
visited March 3, 2008).
(last
70. Melissa R. Vance, Breastfeeding Legislation in the United States: A General Overview
and Implications for Helping Mothers, 41 LEAVEN 51 (2005), available at http://
www.llli.org/llleaderweb/LV/ LVJunJul05p5 1.html.
71. Id
72. Id. The sixteen states that exempt breastfeeding from criminal statutes are: Alaska,
Florida, Illinois, Michigan, Minnesota, Missouri, Nebraska, North Carolina, New
York, Oklahoma, Rhode Island, South Dakota, Utah, Virginia, Washington, Wisconsin. Id. at n.5. The states that have separate breastfeeding statutes are Florida,
Illinois, Minnesota, Missouri, Nebraska, New York, Oklahoma, Utah, Virginia. Id. at
n.6.
73.
74.
75.
76.
Id.; VA. CODE ANN. 2.2-1147.1 (2002).
Id.; N.C. Gen. Stat. § 14-190.9 (1993).
Id. (citing PUB. L. 106-058, sec. 647 (1999)).
See
NAT'L CONFERENCE OF STATE LEG.,
50 States Summary of Breastfeeding Laws,
www.ncsl.org/programs/health/breast50.htm (last visited March 3, 2008).
2008]
THE LACTATING ANGEL OR ACTIVIST?
One court, the 5th Circuit, has declared breastfeeding a constitutional right,77 but the issue has not yet been approached by the United
States Supreme Court. As Vance states in her article, "[tihere is a constitutional right to privacy that includes the right to marry, procreate, use
birth control, and engage in consensual adult sexual activity; thus, the
Supreme Court might well likely find breastfeeding to be a constitutional right., 78 Additionally, there is a constitutional right to association
and intimate association, both of which, like free speech and symbolic
speech, protect a personal freedom;79 similar reasoning could be applied
to make breastfeeding a constitutional right as well.
Qualifying an action as a constitutional right does not create an absolute right that is free of any and all restrictions.' s "The government
may restrict a fundamental right"8' if the government has a countervailing interest that outweighs the individual interest in asserting that right.
"Thus, assuming there is a constitutional right to breastfeed, this right
does not automatically override other interests such as those of a private
employer who may refuse a mother breaks for pumping, or a private
restaurant asking a mother to leave ... ,82
U.S. Courts, like the Sixth Circuit in Derungs v.Wal-Mart Stores,
8
Inc." have not found "actions regarding breastfeeding, such as asking a
nursing mother to leave or refusing to allow her to pump while working
...to constitute discrimination under federal and/or state civil rights
statutes."84 Therefore, it may be legally justifiable for "a private person,
77. See Vance, supra note 70 (citing Dike v. Sch. Bd. of Orange County, Fla., 650 F.2d
783 (5th Cir. 1981).
78. Vance, supra note 70.
79. See City of Dallas v. Stanglin, 490 U.S. 19 (1989) stating:
In Roberts v. United States Jaycees, 468 U.S. 609 ...(1984), we noted two
different sorts of "freedom of association" that are protected by the United
States Constitution: "Our decisions have referred to constitutionally protected 'freedom of association' in two distinct senses. In one line of
decisions, the Court has concluded that choices to enter into and maintain
certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding
the individual freedom that is central to our constitutional scheme. In this
respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has
recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment ......
80. Vance, supra note 70.
81. Id.
82. Id.
83. Derungs v. Wal-Mart Stores, Inc., 374 F.3rd 428 (6th Cir. 2004).
84. Vance, supra note 70.
MICHIGAN JOURNAL OF GENDER & LAW
[15:121
85
such as a restaurant owner ... to ask a breastfeeding mother to leave."
This leaves breastfeeding mothers vulnerable in their everyday lives and
pushes them back into the home by making the world so uncomfortable
and full of potentional confrontations.
In order to give women full autonomy and equality in society,
public breastfeeding must be protected. Therefore, establishing a
woman's right to breastfeed in public calls for the development of "legal theories supporting such a right" and the assertion of these theories
"by and for women who have suffered this form of harassment and
discrimination."86 Theories based on the Due Process Clause of the
Fourteenth Amendment and Title VII, as amended by the Pregnancy
Discrimination Act, are being refined, but have not proved to be very
fruitful.87 One theory that has not been explored is the relationship between public breastfeeding and symbolic speech.
V.
HISTORY OF FIRST AMENDMENT AND SYMBOLIC SPEECH
The First Amendment of the United States Constitution protects
freedom of speech and expression. 8 "The Freedom of Speech clause ...
has been pulled, twisted, stretched, and interpreted to encompass a
boundless array of ideas.
,,89 Yet, "a hierarchy of speech has ...
85. Vance, supra note 70.
86. Shelton, supra note 3, at 191.
87. See Shelton, supra note 3, at 191-202 for an extensive discussion of these theories as
they relate to a woman's right to breastfeed. Dike held that a woman has a constitutionally protected right to breastfeed her child that is based in the Fourteenth and
Ninth Amendments, however the court also stated that the mother's interest must be
balanced against her employer's interests. On remand, the district court did not find
in favor of the mother. Shelton, supra note 3, at 192-194. The Pregnancy Discrimination Act prohibits pregnancy discrimination, but the Supreme Court has not yet
determined whether the Act also protects breastfeeding as either a "related medical
condition" or because a breastfeeding woman is "affected by pregnancy". Shelton, supra note 3, at 198. The Pennsylvania Supreme Court has held that breastfeeding is
not protected under the Act. Shelton, supra note 3, at 192-194 (citing Bd. Sch. Dirs.
V. Rossetti, 411 A.2d 486 (Pa. 1979).
88. "Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of press, or the right
of the people peaceable to assemble, and to petition the government for a redress of
grievances." U.S. CONST. amend. I; See also Texas v. Johnson, 491 U.S. 397, 404
(1 989)("The First Amendment literally forbids the abridgement only of 'speech,' but
we have long recognized that its protection does not end at the spoken or written
word.").
89. Clinton P. Hansen, To Strip or Not To Strip: The Demise of Nude Dancingand Erotic
Expression Through Cumulative Regulations, 35 V.A. U. L. REv. 561,567 (2001) (citing JETHRO K. LIEBERMAN, A PRACTICAL COMPANION TO THE CONSTITUTION 204
2008]
THE LACTATING ANGEL OR ACTIVIST?
emerged" from "the vast body of case law interpreting the First Amendment." 90 Further, as Susan Williams explains, "[t]he constitutional
protection for 'speech' should then be understood not as limited to verbal behavior, but rather as identifying a more general category of
symbolic meaning-making activity (of which speech-conventionally
understood, as verbal behavior-is the most common example)." 91 "Pure
speech is roughly defined as verbal expression used to convey political
messages or individual opinions and is entitled to absolute protection
' "[R]egulations based on the content of
under the First Amendment."92
the speech, will not be permitted unless those restrictions meet the strict
scrutiny standard of serving a compelling government interest by narrowly tailored means." ' There is an additional category of speech
known as "speech plus," as Clinton Hansen explains:
Speech that contains an ...element of conduct has been referred to as symbolic speech or "speech plus." 94 The "plus"
element signifies when pure speech, defined in the minds of
the public, has become so entangled with an action or symbolic representation that it is difficult to determine where
speech stops and where conduct begins. 9"
Because speech plus contains an action or symbolic representation it is
also known as symbolic speech.
One should not consider symbolic speech a new doctrine of the
law.96 "[T]he freedom to speak through symbolic speech has evolved to
(1999) (stating that "[n]ext to Due Process, no other constitutional provision embraces a greater variety of people, events, and concerns.").
90. Id.at 567-568 (citingLIEBERMAN, supra note 89, at 470).
91. SUsAN H. WILLIAMS,
TRUTH, AUTONOMY, AND SPEECH: FEMINIST THEORY AND THE
FIRST AMENDMENT 201 (2004).
92. Hansen, supra note 89, at 568 (citing Paul L. Murphy, Symbolic Speech and the First
Amendment, in THE BILL OF RIGHT IN MODERN AMERICA: AFTER 200 YEARS 43
(David J. Bodenhamer & James W. Ely, Jr. eds., 1993).
93. Id. at 568.
94. "[T]he political culture in the 1950's, '60's and '70's resulted in the increased protesting of the government and government policy through marches, picketing, and sit-ins
evolved into a new derivative of 'pure speech' (i.e., verbal expression) called 'speech
plus')." Id. at 569 n.47. ((citing Paul L. Murphy, Symbolic Speech and the First
Amendment, in THE BILL OF RIGHT IN MODERN AMERICA: AFTER 200 YEARS 43
(David J. Bodenhamer & James W. Ely, Jr. eds., 1993).
95. Hansen, supra note 89, at 569.
96. Id. at 569. "Symbolic expression is as old as mankind. It has played a vital role in
political, and certainly in religious, life for centuries. The colonial cause in the American Revolution was expressed symbolically at many turns, the Boston Tea Party being
a prime example."). Id. at 569 n.49 (citing Murphy, supra note 92, at 43-44).
MICHIGAN JOURNAL OF GENDER 6- LAW
[15:121
include a broad array of mediums including those outlets which, upon
first glance, would never have been considered speech in the past,"97
such as nude erotic dancing", flag burning99 , wearing symbolic black
armbands1' °, and burning a draft card' ° '.
VI.
SYMBOLIC SPEECH UNDER THE SPENCE TEST
The Supreme Court's present test for symbolic speech, announced
in Spence v. Washington,1 2 requires that the speaker intend to communicate a particular message and that the audience be likely to understand
that message.0 3 Does anyone really know what that means or how to
apply this "test?"' 4 A cynical theory would be that the test is just a vehicle for intellectual dishonesty; meaning it is vague enough that it gives
the Supreme Court Justices room to make the statements necessary to
support their desired result.0 5
The United States Supreme Court rejected the free speech challenge of David O'Brien who claimed burning his draft card should be
protected under the First Amendment.10 6 The Court did not debate
97. Id. at 569-570.
98. See Barnes v. Glen Theater, Inc., 501 U.S. 560, 566 (1991) (stating "nude dancing of
the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.").
99. See Texas v. Johnson, 491 U.S. 397 (1989) (involving the burning of a flag to express
discontent with the government).
100. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (involving
the wearing of a symbolic armband to protest the Vietnam War).
101. See United States v. O'Brien, 391 U.S. 367 (1968) (involving the burning of a draft
card to protest the Vietnam War).
102. Spence v. Washington, 418 U.S. 405 (1974).
103. Spence, 418 U.S. at 410-11.
104. See e.g. James M. McGoldrick, Jr., United States v. O'Brien Revisited: Of Burning
Things, Waving Things, and G-Strings, 36 U. MEM. L. REv. 903, 925 (2006) (stating
"[e]ven with the additional gloss from these cases, the Spence test is almost impossible
to apply. It should come as no surprise that the lower courts are in almost hopeless
confusion about how to apply the Spence test.")
105. There has been widespread criticism of the Spence test by scholars. See e.g. Robert
Post, RecuperatingFirstAmendment Doctrine, 47 STAN. L. REv. 1249, 1252 (1995)
(stating the Spence test does not require enough: routine vandalism should not create
an entitlement to First Amendment review whenever the perpetrator can claim he or
she was intending to express meaning that the audience would have understood); Jed
Rubenfeld, The FirstAmendment's Purpose, 53 STAN. L. REv. 767, 772-773 (2001)
(stating the Spence test requires too much: it requires an intent to communicate a particularized message, therefore it would exclude from First Amendment protection
large areas of art, which lack a specific message but which most people think should
be protected nonetheless).
106. United States v. O'Brien, 391 U.S. 367, 367 (1968).
20081
THE LACTATING ANGEL OR ACTIVIST?
whether the act constituted symbolic speech. In fact, it assumed that the
act constituted speech 10 7 and went on to develop a four-part test for
when government regulation of the non-speech element of the act
would be allowed' 08 Legal scholars point to the myriad of mistakes in
O'Brien.'°' Specifically relevant here, O'Brien did not "distinguish between expressive conduct that would be accorded a high level of
protection under the Free Speech Clause of the First Amendment and
that conduct which, like the regulation of walking on the grass, would
only have to be justified by at most conceivably-valid governmental interest."" 0
The United States Supreme Court made its first attempt to define
symbolic speech in Spence."' In that case, Spence had taped "a peace
symbol upon both sides of his own American flag and hung it upside
down" from the window of his Seattle apartment. 2 The simple, yet
powerful symbol was intended as a protest to the expansion of the Vietnam War, specifically, the invasion of Cambodia and the subsequent
killing of war protestors at Kent State University."' Ultimately, the
United States Supreme Court ruled that the altered flag was "a form of
protected expression."" 4 The obvious symbolism of a flag and the fact
that the State conceded Spence had engaged in speech enabled the
Court to refrain from giving a clear definition of symbolic speech that
would serve as guidance in more difficult cases."' Rather, the Court
107.
108.
109.
110.
111.
112.
113.
O'Brien, 391 U.S. at 376.
O'Brien, 391 U.S. at 376-377.
See, e.g., McGoldrick, supra note 104, at 909-15.
Id. at 909.
Id. at 915.
McGoldrick, supra note 104, at 915. See also, Spence, 418 U.S. at 406.
Spence, 418 U.S. at 408. "The Kent State shootings also known as 'May 4' and 'Kent
State massacre' occurred at Kent State University in the city of Kent, Ohio, and involved the shooting of students by the Ohio National Guard on Monday, May 4,
1970." The altercation ended in the death of four students and the wounding of nine
others. The shootings were the culmination of four days of increasingly agitated
demonstrations by members of the student body. The students were protesting the
American invasion of Cambodia which President Nixon launched on April 25, and
announced in a television address five days later. For an in depth discussion of the
events surrounding the Kent State shooting please see Jerry M. Lewis & Thomas R.
Hensley, The May 4 Shootings at Kent State University: The Search for HistoricalAccuracy, 34 OHIo COUNCIL SOCIAL STUDIES REV. 9-21 (Summer 1998), available at
http://dept.kent.edulsociologyllewislLEWIHEN.htm. See also, Gary Tuchman, Kent
State Shootings Remembered, CNN, May 4, 2000, http://archives.cnn.com/2000/US/
05/04/kent.state.revisit/.
114. Spence, 418 U.S. at 405.
115. McGoldrick, supra note 104, at 917.
[15:121
MICHIGAN JOURNAL OF GENDER & LAW
stated that mere intent to express an idea is not enough." 6 First, there
must be an intent to communicate a "particularized message" and, second, "in the surrounding circumstances the likelihood [should be] great
that the message would be understood by those who viewed it.""... The
Court also stated that relevant factors include both the nature of the
communicative activity and its factual context and environment." 8
Then, the Court applied these principles to the underlying facts,
noting that flags are "a short cut from mind to mind."".9 The Court suggested that the "[flactual context and environment were all important
...because 'they give meaning to the symbol. '"1 20 The fact that Spence's
flag was posted so temporally close to the invasion of Cambodia and the
later killing of protestors at Kent State, created a clear meaning and gave
importance to the symbolic conduct. 2' "In modern times, an upside
down flag with a trident might be viewed as eccentric or odd, but at the
time the political message would have been clear."' 22 The Court clarified
that "this 'was not an act of mindless nihilism' but 'a pointed
expression
23
government.',
of
topic
important
then
a
about
of anguish'
"The Supreme Court has made little attempt to clarify the Spence
factors.' ' 24 This produced a progeny of cases in which courts simply assumed the act in question was symbolic speech without analysis. For
example, "in Barnes v. Glen Theater, Inc., the Court assumed that nude
dancing was expressive conduct protected by the First Amendment ...
without making any attempt to apply any of the Spence factors."
25
Addi-
tionally, the Court in Clark v. Community for Creative Nonviolence
116. Spence, 418 U.S. at 409.
117. Spence, 418 U.S. at 410-11. The full quote reads: "It may be noted, further, that this
was not an act of mindless nihilism. Rather, it was a pointed expression of anguish by
appellant about the then-current domestic and foreign affairs of his government. An
intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those
who viewed it."
118. Spence, 418 U.S. at 409-410 (noting that "the nature of appellant's activity, combined with the factual context and environment in which it was undertaken, lead to
the conclusion that he engaged in a form of protected expression.").
119. Spence, 418 U.S. at 410 (citing W. Va. State Bd. of Educ. V. Barnette, 319 U.S. 624,
632 (1943)).
120. McGoldrick, supra note 104, at 918 (citing Spence 418 U.S. at 410).
121. Id.
122. Id. at 918.
123. Id. at 919 (citing Spence 418 U.S. at 410).
124. Id.
125. Id. See Barnes v. Glen Theater, Inc., 501 U.S. 560, 566 (1991) (finding that "nude
dancing of the kind sought to be performed here is expressive conduct within the
outer perimeters of the First Amendment, though we view it as only marginally so.").
2008]
THE LACTATING ANGEL OR ACTIVIST?
assumed overnight26 sleeping in connection with a demonstration is expressive conduct.1
VII.
BREASTFEEDING IS SYMBOLIC SPEECH
At first glance, public breastfeeding may seem like too insignificant
or mundane of an issue (like the upside down trident mentioned in
Spence) to classify as symbolic speech. Yet, in the context of the inequities of power and the pervasiveness of male-dominated ideology that
persists in American society, breastfeeding is full of symbolism. The act
of breastfeeding in public is a shortcut from mind to mind. Just as the
flag is "[p]regnant with expressive content,"127 so too is breastfeeding. A
mother providing a child with comfort, warmth and perfect nutrition is
the epitome of a mothering act. In today's culture the proliferation of
assertions about the benefits of breastfeeding, the countless stories of
breastfeeding mothers being harassed, and the attempts to provide protection for such women, create a cultural context where breastfeeding in
public is clearly not a "mindless" act. Rather, it is a deliberate and courageous act meant to bring about great change in society.
Not every expressive activity is "speech" protected by the First
Amendment: "It is possible to find some kernel of expression in almost
every activity a person undertakes-for example, walking down the
street or meeting one's friends at a shopping mall-but such a kernel is
not sufficient to bring the activity within the protection of the First
Amendment." '28 While there can be a kernel of speech in almost every
activity, the societal context is the most important element of the Spence
test because context provides the philosophical texture and depth of
meaning to the action. Black armbands do not have much meaning outside of the Vietnam War protests. 29 The refusal of a student to salute a
flag is just adolescent defiance outside of a certain religious ideology.3 °
The frequent stories of mothers being harassed and evicted from quasipublic places, increased numbers of nurse-ins to protest such treatment,
and the increase in legislative acknowledgement of such harassment, all
create the cultural context necessary to elevate public breastfeeding to
symbolic speech.
126.
127.
128.
129.
130.
Clark v. Cmty. for Creative Nonviolence, 468 U.S. 288, 293 (1984).
Texas v. Johnson, 491 U.S. 397, 405 (1989).
Dallas v. Stanglin, 490 U.S. 19, 25 (1989).
See Tinker v. De Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969).
W. Va. State Bd. ofEduc. V. Barnette, 319 U.S. 624, 642 (1943).
MICHIGAN JOURNAL OF GENDER & LAW
[15:121
"The only Supreme Court case to examine the Spence test critically
... was Hurley v. Irish-American Gay, Lesbian and Bisexual Group ofBoston."'' The private group in this case argued that participating in the
annual Boston St. Patrick's Day Parade was an act of expressive association entitled to free speech protection. 3 2 The Court was particularly3
critical of the Spence test and its 'particularized message' requirement. 3
In Hurley, the Court gave examples of where "the Constitution looks
beyond written or spoken words as mediums of expression" and cited
various acts which the Court has held were protected by the First
Amendment's shield including: saluting a flag (and refusing to do so),
wearing an armband to protest a war, displaying a red flag, and even
34
marching, walking or parading in uniforms displaying the swastika.
Justice Souter stated "[a]s some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional
protection, which if confined to expressions conveying a 'particularized
message,' . would never reach the unquestionably shielded painting of
Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of
' In light of Hurley,
Lewis Carroll."135
even if there were no "particularized" message in public breastfeeding, a case can still be made that it is
symbolic/expressive speech. The lack of a glaring, single particularized
message does not preclude an act from falling within the protection of
The First Amendment. Rather, it seems to be common among all symbolic speech. As Professor Susan H. Williams explains:
[The intent to communicate] does not require that the symbolic speech take the form of an argument or that it appeal to
reason rather than to other faculties, such as emotion or
imagination. An intent to create meaning is, however, more
than merely an intent to change the physical world in some direct. way. Such an intent must include the purpose of
contributing to the way people (oneself and perhaps others)
understand something, where understanding includes emotional, imaginative, and other elements along with rational
ones .... Some relevant issues include public nature of the
act, the use of commonly understood symbols, and the connection of the act to the agent's deep commitments. The
131. McGoldrick supra note 104, at 920. See Hurley v. Irish-Am. Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).
132. Hurley, 515 U.S. at 561.
133. Hurley, 515 U.S. at 569.
134. Hurley, 515 U.S. at 569.
135. Hurley, 515 U.S. at 569 (emphasis added).
2008]
THE LACTATING ANGEL OR ACTIVIST?
central question is whether the act is valued, at least in part,
because of its symbolic meaning (to the speaker and/or others)
and not only for its physical effects in the world. It is this intent that must be present (although it need not be the only
intention) in order for an activity to qualify as symbolic
speech.136
On the other hand, one can argue that there is a clear "particularized" message. Breastfeeding in public is the only way to change the
social stigma and the attitude that breastfeeding should be hidden behind closed doors. Additionally, the emotional and visceral reaction
caused by witnessing public breastfeeding, by those who find it offensive, is much like the reactions to witnessing the burning of a draft card
or a flag. This reaction is rooted in the outdated patriarchal ideology
that women should be relegated to the home, an ideology that publicly
breastfeeding mothers seek to change.
Just because an act is utilitarian as well as symbolic does not take
away its expressive character. For example, flag burning incinerates a
flag, erotic dancing provides income for the dancer, and breastfeeding
creates a change in the physical world at the most basic level-feeding a
hungry child. Yet, breastfeeding in public, like other expressive acts, at
the same time affects a greater change.
Breastfeeding in public impacts the way that the public views
women, their bodies and their mobility in society. Coming into contact
with a woman breastfeeding her child in public conjures the emotional
and imaginative reactions that Professor Williams discusses. Many of
these reactions are negative, as evidenced by the countless number of
incidents of disgusted stares, negative comments and ejections from
places of business that breastfeeding mothers face when nursing in public.1 37 Mothers who venture to breastfeed in public, in spite of the
possibility of being confronted by horrific reactions show a deep commitment to the value and impact of the act. The value of the act is in its
capacity to influence the way women view their own bodies and the way
their bodies are viewed by society, to challenge the sexist notions that
women should be relegated to the home (allegedly the "appropriate"
place for breastfeeding) and that women's bodies are sexual objects.
136. SUSAN H.
WILLIAMS, TRUTH, AUTONOMY, AND SPEECH: FEMINIST THEORY AND THE
202 (2004).
137. See supra, notes 42-43.
FIRST AMENDMENT
MICHIGAN JOURNAL OF GENDER & LAW
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CONCLUSION
The idea that something so natural and important to the health of
a child and mother is "dirty, sexual, embarrassing, and generally something that should be kept behind closed doors" '38 is simply an extension
of the patriarchal desire to subjugate women and keep them in the
home. Just as other discrimination against women is no longer legally or
socially acceptable, discrimination against public breastfeeding should
no longer be acceptable.
Breastfeeding is incredibly beneficial to children, mothers and society. In my opinion, the fight against patriarchal ideas has sparked a
new movement in a new generation. Women now seek to have all the
success in career and personal life that previous generations thought
were mutually exclusive. A new group of women see that the benefits of
breastfeeding are undeniable and challenge the idea that breastfeeding
should only happen behind closed doors. This new group of women
seeks to shake off the patriarchal shackle that ties "good" women to the
home.
Public breastfeeding is a link in this chain. The mobility of women
is directly related to their rejection of and freedom from the relegation
to the home. By freeing women to breastfeed in public, or any other
place they could give their child a bottle, they are freer to create and
pursue their own paths in life. The negative reactions to public breastfeeding must stop. The only way to combat the stigma is through the
act of breastfeeding in public. And such a deeply expressive and symbolic act should be protected by the First Amendment as Symbolic
Speech. t
138. Shelton, supra note 3, at 179.